SERVICE OF NOTICE OF APPEAL ON COUNSEL: SUPREME COURT IN FRESH CONTROVERSY

Introduction

The Rules of Courts mostly provide that court processes used to commence court actions (originating processes) such as Writ of Summons, Originating Summons, etc must be served personally on a defendant (where the defendant is an individual). Notice of Appeal (used for the commencement of an appeal) equally ranks as an originating process. Of course, Rules of Courts also provide for the procedure where personal service is not possible or practicable. In this case, substituted service (either by pasting of the originating process, newspaper publication, etc) may be adopted. 

There are usually no troubles when other forms of originating processes are involved. The problem is with a Notice of Appeal. Most times, at the conclusion of a case, the losing party or party dissatisfied with the decision (“Appellant”) may decide to appeal. The Notice of Appeal filed by the appellant’s counsel is usually served on the counsel who represented the other successful party (“Respondent”) at the trial court. As a matter of practice, if the same counsel was retained to defend the appeal, the case will smoothly proceed on appeal after the counsel might have been served with the Notice of Appeal meant for the respondent. We have also seen cases where the respondent may decide to use another counsel entirely to defend the appeal. The new counsel will normally proceed, relying on the Notice of Appeal already served on the erstwhile counsel. 

The real issue now is that some respondents tend to challenge the competence of the Notice of Appeal served on them through the office of the counsel who represented them at the trial court. The argument here is that a Notice of Appeal is an originating process which must be served personally on the individual – the respondent – and not through his or her counsel. There are cases where such respondent will take steps to defend the appeal by filing Brief of Argument but still insist that the appeal was incompetent since the Respondent wasn’t served personally, or where the Notice of Appeal does not contain an address for service on the respondent.

Odey v. Alaga

In a recent case decided on 25 February 2021, the Supreme was torn into two – 4 to 3 – regarding this issue which emanated from an interesting set of facts. This was in the case of Odey v. Alaga [2021] 13 NWLR (Pt. 1792) 1.

The Majority decision was least expected. The days of technicality appear to be far from being over.

The Appellant, Dr. Stephen Adi Odey, was a Senator representing Cross River North Senatorial District under the umbrella of the Peoples Democratic Party (PDP). He has since left the PDP to join the All Progressives Congress (APC) after being replaced in the Senate by Jarigbe Agom Jarigbe (“the 2nd Respondent”) of the PDP following Odey’s defeat at the Supreme Court. The two were involved in series of cases.

The part of the legal battle that concerns us for the purpose of our discussion was that while Stephen Odey was enjoying his seat at the Senate, Jarigbe Agom secured a favourable judgment against Chief John Alaga (“1st Respondent”) who himself was also a contender for the seat of the Senate from Cross River North. Chief Alaga’s case failed even on appeal to the Court of Appeal. Stephen Odey was not a party to the suit. He however applied for leave to appeal to the Supreme Court against the Court of Appeal’s decision which was in favour of Jarigbe Agom and against his interest. Supreme Court granted him leave.

The controversial Notice of Appeal

Stephen Odey filed his Notice of Appeal and served it on the Respondents (Chief Alaga and Jarigbe Agom) through their respective Counsel. The Respondents filed a preliminary objection to the appeal arguing that the appeal was incompetent on the ground that they were not served with the Notice of Appeal, personally. More so, that the addresses for service endorsed on the Notice of Appeal were not their own personal addresses in the first place, as such, the Notice of Appeal cannot be said to contain address for service.

While their preliminary objection was pending, the Appellant applied for and obtained an order for service of the Notice of Appeal on the Respondents through substituted means.

Supreme Court’s Decision

At the hearing, the Supreme Court (4 to 3) upheld the preliminary objections and struck out the appeal. Hon. Justices Nweze, Aboki, Oseji and Abubakar, JJSC were in the majority.

Hon. Justices Muhammad, Ogunwumiju, and Agim, JJSC dissented.

Majority Decision

The Majority led by Nweze, JSC held that there was no personal service of the Notice of Appeal and also set aside the order earlier made for substituted service of the Notice of Appeal on the Respondents. This was on the ground that it was an order made when the preliminary objections of the Respondents were pending; and being a belated attempt to cure the defect of the improper service of the Notice of Appeal.

The Majority concluded that since there was no personal service of the Notice of Appeal, the appeal was incompetent and that this goes to the jurisdiction of the court.

Dissenting Judgment

The dissenting Judgment of the Minority is quite compelling. The following were outlined as reasons the preliminary objections filed by the Respondents deserved to fail. The reasons drew from the arguments of the Appellant’s Counsel, Chief Wole Olanipekun, SAN, which Muhammad, JSC considered as powerful.

1. The Respondents had accepted service on them of the Appellant’s application for leave to appeal at the very address of their respective Counsel endorsed on the Notice of Appeal which was being challenged. Order 1 Rules (2) and (5) of the Supreme Court Rules define “appeal” to mean “The filing of notice of appeal and includes an application for leave to appeal.” “The Respondents/Applicants who had accepted the service of Appellant/Respondent’s notice of his application for leave to appeal on them through the same address as effective service should not be allowed to assert otherwise now.” Per Muhammad, JSC at page 79.

2. The Respondents were served with the Notice of Appeal by substituted means before the hearing of the appeal, based on an order for substituted service made by the Court. Any defect in service is an irregularity cured by the substituted service. After all, substituted service can be ordered in line with the Rules, with or without a failed attempt at personal service. “An infraction that merely robs the court of its procedural competence rather than its substantive competence can always be cured.” Per Ogunwumiju, JSC at page 95.

3. The Respondents have filed and exchanged Briefs of Argument signifying thereby that they have waived the very defect they complained of.

4. Dismissing the preliminary objection was in line with the extant position of the Supreme Court at the time, as established in the case of Saleh v. Abah [2017] 12 NWLR (Pt. 1578) 100 where service of Notice of Appeal on Respondent’s Counsel was upheld as good. An appeal has been held to be a continuation of the proceedings. It was the duty of the counsel who appeared to notify the registrars that counsel had ceased to act for a given party. Otherwise, such party can be served at counsel’s address endorsed as address for service. Therefore, Order 2 Rule 2 of the Supreme Court (Amendment) Rules 2014 applies. The Respondents did not deny receiving a copy of the Notice of Appeal. Their argument is basically that they were not served personally. 

5. As a matter of fact, other Supreme Court’s decisions relied upon by the Respondents, such as Ihedioha v. Okorocha [2016] 1 NWLR (Pt. 1492) 147, were inapplicable as they relate to where no address at all were provided for service. 

6. It is the duty of the Supreme Court to maintain its jurisprudence of substantial justice rather than technical justice.

7. The Respondents were validly served through their respective Counsel and also by substituted means.  

8. “The objection of the 2nd Respondent [and of course, the 1st Respondent] is mala fide [brought in bad faith] and is therefore a gross abuse of the process of court as its purpose is to avoid the hearing and determination of the merit of this appeal. This kind of illegitimate objection that is being used to prevent adjudication on the merits of a case would bring administration of justice to disrepute. Courts must not allow the use of frivolous or false objections to frustrate the due process of adjudication.” Agim, JSC at page 110.

Conclusion

It is sad to think that the above compelling reasoning of the Learned Justices of the Supreme Court would be condemned to a Minority decision. This is the kind of decision often expected to flow from the Supreme Court – A decision that accords with great sense of substantial justice.

We hope that in no distant time, the opportunity will call again for the apex Court to settle the issue finally. More so, an amendment of the Rules of Court in line with the Minority position to further clarify the procedural issue will be welcome. 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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